Commission of India Vs. State Bank of India Staff Association Local Head Office
 INSC 123 (7
A.M. (Cj) Ahmadi A.M. (Cj) Mohan, S. (J) Singh N.P. (J)
1995 AIR 1078 1995 SCC Supl. (2) 13 JT 1995 (2) 61 1995 SCALE (1)466
Both these appeals can be disposed of by this common judgment as the question
under consideration in both cases bears on the language of clause (6) of
Article 324 of the Constitution of India.
Election Commission of India is the appellant in both the
appeals, Ar- 63 ticle 324 of the Constitution vests in the Election Commission
the power of superintendence, direction and control of the preparation of
electoral rolls for, and the conduct of, all elections to Parliament and to the
Legislature of every State.
Clause (6) of Article 324 reads as under:
President, or the Governor of a State, shall, when so requested by the Election
Commission, make available to the Election Commission or to a Regional
Commissioner such staff as may be necessary for the discharge of the functions
conferred on the Election Commission by clause (1)".
Article 327 enables Parliament to make provision with respect to all matters
relating to, or connected with, elections to either House of Parliament or to
the House or either House of Legislature of a State including the preparation
of electoral rolls, the delimitation of constituencies and all other matters
necessary for securing the due constitution of such House or Houses.
exercise of the power vested in the Parliament under these Articles it enacted
the Representation of the People Act, 1950 and the Representation of the People
Act, 1951 (hereinafter referred to as 'the 1950 and 1951 Acts', respectively).
The 1950 Act provides for the allocation of scats and the delimitation of
constituencies for the purpose of elections to the House of People and the
Legislatures of the States, the qualifications of voters at such elections, the
preparation of electoral rolls and the matters connected therewith. The 1951
Act provides for the conduct of elections to the Houses of Parliament and to
the House or 1 louses of the Legislature of each State, the qualifications and
disqualifications for membership of those Houses, the corrupt practices and
other offenses at or in connection with such elections. Sections 26 of 1951 Act
enables a District Election Officer to appoint a Presiding Officer for each
polling station. Section 159 of the said Act reads as follows:
Staff of every local authority to be made available for election work. Every
local authority in a State shall, when so requested by a Regional Commissioner
appointed under clause (4) of article 324 or the Chief Electoral Officer of the
State, make available to any returning officer such staff as may be necessary
for the performance of any duties in connection with an election."
From a conspectus of the above provisions it seems clear to us that on the
request of the Election Commission the President or the Governor of the State
must make available to the Election Commission such staff as may be necessary
for the discharge of functions conferred on the Election Commission under
clause(1) of Article 324. In view of clause (6) of Article 324 the President or
the Governor of the State when requested will make available to the Election
Commission the services of such staff as may be necessary for the discharge of
the functions conferred on the Election Commission. By this, it is meant that
the persons whose services may be placed at the disposal of the Election
Commission must be persons who are either employees of the Central Government
or of the State Government.
in view of Section 159 extracted above when a requisition is made by the
Regional Commissioner, the local authority shall make available its staff for
the purpose of duties in connection with an election.
Thus far there is no dispute but the controversy arises in view of the action
taken by the District Election Officer making the following requisition:
OF THE DISTRICT ELECTION OFFICER-Cum-DISTRICT MAG- ISTRATE- Ref.No.522/Elec. Patna,
the 22nd, Sept.91 ELECTION TOP PRIORITY To Chief General Manager State Bank of
India Jajej Road Patna Sub: List of Officers & Staff for appointment as
presiding Officers & Polling Officer in Mid Term Parliamentary Election 1
Assembly bye-election, 1991.
am to inform you that services of large number of Officers & staff will be
required for appointment as Presiding Officers, Polling Officers and
Patrolling-Ballot Box collecting Officers in the forth coming Mid-term
Parliamentary Election & Assembly bye-election, 1991 in this district.
are requested to send complete 1.11.1991 certain orders were issued by list of
officers and staff of your office & the said District Election Officer
appoint field officers located in the District Patna ing and deputing some of
the employees under you in the proforma given below in of the State Bank of
India on election duty TRIPLICATE through Special Messenger to Shri Keshav
Prasad, Additional District Magistrate (Establishment), Patna.Collectorate, Patna
latest by 5th October, 1991 positively. Such Officer or Staff who is either
female or disabled or appointed as cashier or deployed on night guard duties or
is unavoidably necessary to be retained as Skeleton Staff in you office or is
on long leave or training deputation may please be suitably indicated in the
remarks column against his/her name in the list so that they may be considered
for exemption from Election Duties as far as possible and practicable. You are
also requested to certify that no officer or staff has been left out.
give full name & exzct location & addresss of the office on the top of
the list to facilitate service of appointment letters, Telephone number of your
office & residence, if available may also be indicated below the address.
sincerely hope that you will extended your full co- operation & the list
relating to your office complete in all respect will be made available to Shri Keshav
Prasad, Additional District Magistrate (Establishment), patna Collectorate
latest by 5th October, 1991 positively.
accord highest priority. Please acknowledge receipt.
faithfully, sd/- (ARBIND PRASAD) DISTRICT ELECTION OFFICER cum-District
appears, on 30.10.1991 adn 1.11.1991 certain orders were issued by the said
District Election Officers appointing and deputing some of the employees of the
State Bank of India on elections to the Barh
Parliamentary Costituency and Pali Assembly constituency which were to be held
on 16.11.1991. Thereupon the first respondent filed a writ petition (CWJC No.
7815 of 1991) in the High court of Patna 65 praying for quashing these communications on the ground that the
District Election Officer had no authority to requisition the services of the
Bank employees for election duty.
While this writ petition was pending, sometime in May, 1993, in connection with
the polling to be held in 35-Patna Parliamentary Constituency, similar letters
of appointment of employees of the State Bank of India for election duty were issued by the District Election
the first respondent moved an ,application for amendment to include a challenge
to these letters of appointment as well. The amendment was allowed.
High Court, by the impugned judgment dated 21.5.1993, held that the District
Election Officer had no power under Section 26 of the 1951 Act to requisition
the services of employees of the State Bank of India for election duty. The High
Court took the view that the State Bank of India was not a local authority within the meaning of Section 159 of the 1951
Act. Accordingly, the High Court quashed the orders and issued a writ in the
nature of mandamus- commanding the Election Commission of India not to
requisition the services of the employees of State Bank of India in exercise of its power under
Section 26 of the 1951 Act.
may here be mentioned that during the pendency of the writ petition, the
counsel for the Election Commission brought to the notice of the High Court
that by a judgment dated 7.11.1989 the High Court of Rajasthan had quashed the
order of the District Election Officer, Ajmer dated 8.8.1989 by which he had
requisitioned the services of the employees of the Life Insurance Corporation
of India, Ajmer for election duty. This was in Writ Petition No.4644 of 1989,
Civil Appeal No. 4611 of 1989 is against that judgment.
submission of Mr.S. Murlidhar, learned counsel for the appellant, Election
Commission of India, in Civil Appeal No.6026 of 1993 run thus:
Article 3249 the superintendence, direction, control and the conduct of all
elections to Parliament and to the Legislature of every State vests in the
elections have to be conducted fairly and property. A large number of officers
are required to man a number of polling stations that are required to be set up
in each State. For each polling station five personnel are required in the
minimum. That is why clause (6) of Article 324 of the Constitution of India
envisages that when a request is made by the Election Commission or a Regional
Commissioner, the President or the Governor will provide such staff as may be
necessary for discharging the functions stated in clause (1) thereof. The
question then is, whether the words 'such staff' occurring clause (6) are to be
confined only to the staff under the Government? In this connection, Article
327 may also be seen. In regard to all matters concerning the elections, the
Parliament can make provision by law. In exercise of that power the 1950 and
1951 Acts came to be enacted. Therefore, in ascertaining the meaning of 'such
staff' we will have to necessarily look at the 1950 and 1951 Acts.
Section 13A of the 1950 Act deals with the Chief Electoral Officer for each
State. He will have to be a Government 66 servant. Similarly, Section 13A deals
with the District Election Officers. Under Section 13CC, Officers and staff-
members employed in connection with the preparation, revision and correction of
the electoral rolls are deemed to be on deputation. They are subject to
control, superintendence and discipline of the Election Commission.
under Section 28A of the 1951 Act Returning Officers, Presiding Officers, etc.,
arc deemed to be on deputation and are subject to control, superintendence and
discipline of the Election Commission.
Section 21 of the 1951 Act enables the Election Commission to nominate a
Returning Officer. So also an Assistant Returning Officer can be appointed by
the Election Commission. Both are expected to be Government Officers or
employees of a local authority. In contrast, under Section 26, a Presiding
Officer for polling station could be anyone, not necessarily a Government
servant or an employee of a local authority. This is an important distinction.
Section 13A talks of breaches of official duty in connection with election and
includes the District Election Officers, Returning Officers, Polling Officers
etc. So also Rules 17 (c), 34, 35 and 53(2) speak of non-Government servants as
well. In support of the submission reliance was placed on the decisions in K.P.
Roy v D. Rules, District Magistrate, Howrah AIR 1971 Calcutta 461 and the judgment in Civil
Appeal No.4611 of 1989. In the first case Railway employees were involved while
in the latter employees of Life Insurance Corporation were involved.
Before the High Court, an argument was raised that the State Bank of India must be held to be a local
authority under Section 159 of the 1951 Act. That argument is not advanced
Mr. Dushyant Dave, learned counsel for respondents 1 to 5 in Civil Appeal
No.6026 of 1993 countered: the source of power to requisition the services
being Article 324, court should first read the plain words of clause (6). That
clause clearly states that the request must be made to the President or the
Governor of a State. On receipt of such a request from the Election Commission,
such staff as may be necessary for discharge of the function under clause (1)
must be made available to the Election Commission or Regional Commissioner. No
doubt, under Article 327 the Parliament may empower drafting the services of
others by enactment of law. That is why Section 29 of the 1950 Act and Section
159 of the 1951 Act talk of the obligation of the local authority to make its
staff available. Merely because anyone could be appointed as Presiding Officer
or polling Officer does not necessarily lead to the conclusion that services of
any person even though not a Government servant could be sought under Article
324(6) If the power, as contended by the appellant, is granted to the Election
Commission, it will become an imperium in inperio.
it was expressly negatived by this Court in Digvijay Mote v. Union of India and
others 1993 (3) SCC 175 at 178.
Now, we come to Article 324. It will be useful to extract the following clauses
of the said Article which have a bearing on the issues involved:
Superintendence, direction and control of elections to be vested in an Election
Commission. -(1) The superintendence, direction and control of the preparation
of the electoral rolls for, 67 and the conduct of, all elections to Parlia- ment
and to the Legislature of every State and of elections to the offices of
President and Vice-President held under this Constitution shall be vested in a
Commission (referred to in this Constitution as the Election Commission).
xxxxx xxx 324 (4) Before each general election to the House of the People and
to the Legislative Assembly of each State, and before the first general
election and thereafter before each biennial election to the Legislative
Council of each State having such Council, the President may also appoint after
consultation with the Election Commission such Regional Commissioners as he may
consider necessary to assist tile Election Commission in the performance of the
functions conferred on the Commission by clause(1)."
have already extracted clause (6) of Article 324 which empowers the Election
Commission to request the Presi- dent, or the Governor of the concerned State
to make available such staff as may be necessary for it to carry out its duty
under clause (1). Such a provision was necessary for the obvious reason that
since the Election Commission has to hold elections at intervals it is not
required to maintain a huge staff at considerable expense to the exchequer and
therefore the power to seek on request such staff as is necessary came to be
engrafted in the constitu- tion itself
assume that the powers of the Election Commission under Article 324 are
plenary. Therefore, the Election Commission may issue any direction in the
matter of conduct of elections. But the questions is, in the garb of conduct of
elections, can the Election Commission usurp the power not vested in it? This
will depend on the understanding of clause (6) of Article 324. For the conduct
of elections when the Election Commission makes a request to the President or
the Governor to make available the staff they are obliged to provide the services.
What is the meaning of 'such staff? According to Mr. Dushyant Dave we should
refer to Article 310 which talks of a member of Civil Service (in
contradistinction to Defence Service of the Union
or the State), holding office during the pleasure (Durante bene placito) of
President or the Governor. Obviously 'such staff' can only mean that staff
which is under the control of the President or the concerned Governor and not
any staff over which they do not exercise control. It could mean only that
staff on which the President or the Governor, as the case may be, would be in a
position to exercise disciplinary powers should they refuse the President's or
Governor's directive. Although the Constitution-makers did not say the Union or the State Governments but only the President or
the Governor, it Is obvious they would have to act consistently with Articles
74(1) and 163(1), respectively. Therefore, on a request by the Election
Commission the services of those Government servants who are appointed to
public services and posts under the Central or State Governments will have to
be made available for the purpose of election. When the Constitution came into
force the services of these officers were readily available. Of course, there
were also local authorities and the services of the employees of the local
authorities were also available. That is why Section 159 of the 1951 Act
provides that on request from the Regional Commissioner or the Chief Electoral
Officer of the State, the local au- 68 thority of the State shall make
available to any Returning Officer such staff as may be necessary to carry out
the duties in connection with an election.
is important to note that their services came to be made available as Returning
Officers and Assistant Returning Officers under Sections 21 and 22 of the 1951
Act introduced by Amendment Act 47 of 1966. Barring the services of these
officers does the Election Commission have power to requisition the Services of
any other person? The argument of the appellant is based on several sections of
the 1950 and 1951 Acts. We have referred to the relevant provisions of the two
Merely because the provisions of the two Acts require that they must be
officers of Government or local authority, unlike in the case of officers
falling under Section 27 of the 1951 Act, it does not, in our opinion, follow
that the services of the officers of the State Bank of India could be
requisitioned. Section 26 of the 1951 Act is not a source of power at all. It
does not, in any manner, enable the Election Commission to draft in the
services of officers other than officers of Government and local authority. To
draw inspiration from these sections to support an argument that the services
of any person could be drafted for the purpose of election is untenable. May
be, to conduct the elections many polling stations are set up. Consequently,
the services of many persons may be required. May be, the Election Commission
may draw the minimum staff from the banks to ensure that the banking business
is not disrupted but the question here is of power and not discretion. If there
is power it may be exercised with circumspection and minimum staff may be
requisitioned but if there is no power the question of the mode of its exercise
will not arise at all. It is a question of existence of power and not the
manner of its exercise.
Article 324 does not enable the Election Commission to exercise untrammeled
powers. The Election Commission must trace its power either to the Constitution
or the law made under Article 327 or Article 328. Otherwise as was held by this
Court in Digvijay Motes Case (supra) (in which one of us, Mohan,J., was a
party) it would become an imperium in imperio which no one is under our
K.P. Roy's case (supra) it dealt with the
appointment of Railway employees as Polling or Presiding Officers. The question
was whether the consent of these officers whose services were requisitioned was
necessary? This has no bearing on the issue under our consideration.
Railway employees are Government servants.
The penalty provisions under the two Acts on which reliance was placed cannot
but relate to those officers who are covered thereunder and not any person as
is urged by the Election Commission. There can be no question of invoking the
penalty provisions against those employees whose services the Election
Commission cannot requisition. We are, therefore, unable to appreciate how
these provisions found in two statutes can be of any assistance in determining
the scope and ambit of the power to requisition the services of employees
belonging to different organisations. In our view, there is no cooperation.
The decision of this Court in Sukhdev Singh v. Bhagatram (1975) 3 S CR 619 and
the decision of the Allahabad High Court in the Case of Shyam Lal Sharma v.
Life Insurance Corporation & Another (1970) 2 FLR 357 are not relevant for
our purpose. The question there was whether rules or regulations framed in
exercise of statutory powers prohibiting employees from indulging in political
activities and taking part in electioneering etc., could be legally made. No
such question arises here.
view of the foregoing discussion, we hold the impugned communications issued by
the District Election Officer-cum-District Magistrate, Patna have been rightly
quashed by the High Court of Patna. Equally so, the High Court of Rajasthan was
right in quashing the order of the District Election Officer, Ajmer dated
8.8.1989. We therefore, uphold the impugned judgments of the High Courts.
civil appeals are accordingly dismissed. However, there shall be no order as to